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Vijay Mallya Extradition Verdict: What Happens Next?

On 10 December 2018, the Westminster Magistrates’ Court delivered its decision in the Vijay Mallya extradition case, sending the case to UK’s Home Secretary of State. This effectively counts as a recommendation to extradite him.

India had made a formal extradition request to the UK government in February 2017, on the basis of a CBI charge sheet which accused Mallya of fraud to secure loans for Kingfisher Airlines (which were never paid back). The Magistrate has held that if the charges against Mallya are proven, they would constitute the offences of “making false representations to make a gain for himself [Mallya], conspiracy to defraud and money laundering.”

But does this mean Mallya will now be extradited? Can Mallya appeal the verdict? And how long will it take before he is brought back to India?

Here’s what happens next.

STEP 1: MALLYA FILES APPEAL WITH UK HIGH COURT

Mallya has 14 days to appeal the lower court decision to UK High Court. In this, he would need to argue that the court’s decision to recommend his extradition to the Secretary of State was wrong, for any of the following reasons:

There is no prima facie evidence that he is guilty of the crimes the CBI accuses him of;

Extraditing him would violate his fundamental right to a fair trial since the CBI is unfairly targetting him;

Extraditing him would violate his fundamental right against torture and inhumane treatment, because of the condition of Indian jails.

However, this appeal will not be heard immediately, and it will only come up for hearing if the Secretary of State decides to.

STEP 2: SECRETARY OF STATE CONSIDERS THE DECISION OF THE MAGISTRATE

The Westminster Magistrates’ Court does not have the authority to extradite a person. Only the Home Secretary of State can do so, which is why the magistrate has sent the case on to them, with its reasoning for why a prima facie case was made out against Mallya.

The Secretary of State now has to decide if there are any bars to extraditing Mallya, a decision which is supposed to be completed in two months, though this can be extended.

There are four specific bars to extradition under the UK’s Extradition Act 2003, including the risk that the person extradited could face the death penalty, or that the person could end up being tried for other crimes apart from the extradition offence. If any of these bars apply, the Secretary of State must order Mallya’s discharge, but it does not look like any of these arguments applies.

However, the Secretary will also hear arguments from Mallya as to why he should not be extradited, provided he submits these within four weeks from the magistrate’s decision. This could lead to an extension of time for the Secretary to make a decision.

After hearing Mallya’s representations, the Secretary of State will then need to decide that Mallya should not be extradited, or that his extradition should be deferred.

STEP 3: MALLYA’S APPEALS IN THE HIGH COURT

If the Secretary of State orders Mallya’s extradition, he can appeal this to the high court within 14 days of this decision. The high court will hear both his appeals, against the Secretary’s decision as well as the decision of the Magistrate to send his case to the Secretary in the first place.

During these appeals, Mallya will get to argue all aspects of the case, including whether his guilt has been prima facie established, as well as his arguments on jail conditions and fair trial.

The appeals are only likely to be heard after several months, subject to the High Court’s schedule, and could take a further few months for the hearings to be completed.

STEP 4: MALLYA APPEALS TO THE SUPREME COURT

If the high court rejects Mallya’s appeal, he can still appeal to the Supreme Court of the UK within 14 days of the high court’s verdict. However, this appeal can only be made if the high court certifies that the case involves a “point of law of general public importance”.

Again, it would take several months before this appeal could be scheduled for hearing, and could take weeks, if not months for the Supreme Court arrives at its decision.

STEP 5: THE SECRETARY OF STATE MAKES A FINAL DECISION

Once the Supreme Court has made its decision, the ball will once again be in the Secretary of State’s court. They will need to make a decision, and if they order Mallya’s extradition, he will need to be extradited within 28 days of the same.

However, the Secretary of State has a lot of discretion over whether to extradite or not, and can take as much time as they want to do so. They can also defer the extradition, which can be done for years at a stretch – Dawood aideTiger Hanif’s legal options were exhausted in 2013, but he has still not been extradited from the UK to India.

Conclusion

To sum up, the decision by the Westminster Magistrates’ Court on 10 December is not final, and is subject to three stages of appeal. Factoring in scheduling, the time needed for hearings, and the Secretary of State’s discretion, it is likely to take at least a couple of years before Mallya is finally extradited to the country.

It should be noted that in the event any of Mallya’s appeals to the Secretary of State or the high court are successful, India would be able to appeal those decisions, subject to the same time limits and conditions for Mallya described above.